Bita Maftoun

The defendant moved for summary judgment dismissing the plaintiff’s claim relating to an alleged beneficial interest in residential property.

The plaintiff had co-signed a mortgage to assist the defendant with the purchase and later executed a trust agreement and power of attorney confirming she held no beneficial interest.

After a prior court order declared those documents valid, the plaintiff commenced an action challenging them and asserting an interest in the property.

The court held the claim was statute‑barred because the limitation period began when the plaintiff consulted counsel and challenged the validity of the documents.

The plaintiff failed to provide admissible expert evidence establishing mental incapacity to delay discoverability under the Limitations Act.

The moving parties sought summary judgment dismissing the claim as statute‑barred under the Limitations Act, 2002 in relation to legal services provided in connection with a real estate transaction and related trust agreement and power of attorney.

The responding party argued the limitation period had not begun to run because she lacked the mental capacity to appreciate that she had a potential claim.

The court held that the evidence filed did not establish mental incapacity sufficient to suspend the limitation period, noting the absence of admissible expert evidence and the failure of the responding party to provide her own affidavit evidence.

The court found the limitation period began when the responding party consulted counsel asserting the invalidity of the documents.

As the claim was commenced more than two years later, the action against the moving parties was statute‑barred.

The responding party sought to set aside a prior order on the basis that it had been obtained by fraud, alleging that motion materials had never been served despite an affidavit of service stating otherwise.

The court considered whether the alleged lack of service established fraud sufficient to invalidate the earlier order.

Evidence included an affidavit from the lawyer who effected service and a voicemail message from the moving party indicating knowledge of the proceeding.

The court found the lawyer’s evidence credible and concluded that proper service had been effected.

The motion to set aside the earlier order was therefore dismissed.